O.A.A. v Minister for Justice, Equality and Law Reform and Another

JudgeMr. Justice Feeney
Judgment Date09 February 2007
Neutral Citation[2007] IEHC 169
CourtHigh Court
Date09 February 2007


O. A. A.



[2007] IEHC 169

[2005/961 JR]



Immigration - Asylum - Judicial review - Risk of harm - State protection - Whether the respondent erred in finding that the applicant’s evidence did not disclose a genuine risk of serious harm.

The applicant sought to challenge, by way of judicial review, the decision of the Refugee Appeals Tribunal (RAT) refusing to grant her refugee status. The applicant submitted that there was no valid basis, and in particular no valid basis identified within the decision, to support the finding that there was no genuine risk of serious harm. In relation to that finding, the applicant submitted that the claim of fear was evaluated on the basis of past persecution only and therefore correct procedures were not followed. It was also submitted that no reasons were furnished for that determination. It was further submitted on behalf of the applicant that the RAT erred in law and in fact and acted irrationally and unreasonably in finding that State Protection existed in respect of the applicant and further that this issue should not have been considered having regard to the earlier finding that a serious risk of harm was not established.

Held by Feeney J. in refusing the application: That the RAT was correct in determining that the fear of harm must be well founded and not just subjective. The RAT’s finding that there was no genuine risk of harm was not based solely on the absence of past persecution. The finding was based upon a determination that all of the evidence, taken together, did not disclose on an objective basis a genuine risk of serious harm. There was a factual and rational basis for coming to such a conclusion and the reasons for this conclusion were identified in the decision.

The RAT correctly identified that persecution comprises two separate but essential elements, namely risk of serious harm and failure of protection. The RAT member applied the correct legal test and concluded that the applicant had failed to provide any evidence that the authorities in her native country would be unwilling or unable to provide protection.

Reporter: L.O’S.


2 1.1 The Applicant in this case is a national of N. who arrived in Ireland on the 2nd February, 2005 and immediately sought asylum in this country. In her application for refugee status, filled out on the 9th February, 2005, it was stated that she had left her country of origin because she did not want her daughter to be circumcised. The plaintiff has two children namely a girl A. J. and a son A. S. Those children came to Ireland with the Applicant and asylum was also sought for them.


3 1.2 The fear of the Applicant's daughter being circumcised was based on a claim that she would be obliged, for cultural reasons, at the age of eight to undergo a circumcision which would more accurately be described as female genital mutilation (FGM). The Applicant's husband remained in N. with another wife who is identified as having no children. In the questionnaire the Applicant claimed that the fear of her daughter being circumcised arose from the fact that it was the custom of her husbands ethnic group and that it was not a matter of choice or consent but of tradition. She also indicated that neither herself nor her husband wanted her daughter circumcised or subject to FGM.


4 1.3 An interview was conducted on behalf of the Refugee Applications Commissioner on the 17th February, 2005. During that interview the Applicant claimed that her fear of her daughter being subject to FGM was based upon custom or tradition and that whilst no actions had been taken towards carrying out such mutilation that there had been discussion concerning the proposed FGM. The parents had said no but that it had been indicated that there was no choice. The issue as to whether or not the Applicant had considered going to the police was dealt with by her indicating that it was nothing to do with the police as it was a cultural or traditional matter and she confirmed that she had not gone to the police. The Applicant also confirmed that she lived and had always lived in L.


5 1.4 Following the interview the Commissioner considered the matter and decided to recommend that the Applicant should not be declared a refugee. That recommendation also applied to the Applicant's two children.


6 1.5 The decision to refuse the Applicant's request to be declared a refugee was made on the basis that she had failed to establish a well founded fear of persecution as defined under s. 2 of the Refugee Act 1996 (as amended). That decision was appealed to the Refugee Appeals Tribunal on the 21st March, 2005. The notice of appeal was accompanied by detailed written submissions from the Applicant's solicitors James Watters and Co. As part of those submissions it was contended that in considering the Applicant's claim for asylum the Refugee Applications Commissioner had relied on a number of country of origin reports on N. but that due regard had not been given to the contents of those reports and in particular the U.K. Home Office Country Assessment Report of October, 2004, which had confirmed that whilst circumcision in N. was declining that it was still widely practiced and that young children are often at risk. It was also submitted:

"… that the Applicant's belief in that the police would not assist her was reasonable. The country of origin information on N. (Canadian Immigration & Refugee Board Report, 27/11/2003-Appendix A) says that there is no federal law criminalising the practice of FGM. In this regard, it is submitted that it is not reasonable to expect the Applicant to produce evidence of her seeking protection of her state, i.e. the police, from the practice which is not criminalised."


7 1.6 The refugee Appeals Tribunal conducted an oral hearing and having considered the matter arrived at a decision dated the 20th June, 2005. That decision was to the effect that the appellant did not suffer from a well founded fear of persecution and the recommendation of the Refugee Applications Commissioner was affirmed. The Applicant was informed of that decision, which covered both herself and her two dependant children, by a letter of the 30th June, 2005.


8 1.7 The Refugee Applications Commissioner had not only determined that the Applicant had not disclosed a well founded fear of persecution but also found that the Applicant's claim was not credible. The decision of the Tribunal did not make any adverse finding in relation to credibility but preceded on the basis of accepting the Applicant's evidence. The effect of such an approach was that the Applicant's evidence was accepted at its height and that her stated fear was accepted as genuine and subjectively true. What was expressly considered by the Tribunal member was whether or not such subjective fear was objectively a "well founded fear". The Tribunal member made a determination that the alleged risk or fear identified by the Applicant was not sufficiently real or well founded as to amount to persecution.


9 1.8 A second matter considered by the member of the Tribunal proceeded on the basis that the Applicant's fear was well founded. In dealing with this matter the Tribunal member identified that the issue as to whether an individual faces a risk of persecution requires identification of the serious harm faced in the country of origin and an assessment of the State's ability and willingness to respond effectively to that risk. The decision correctly identified that persecution is the construct of two separate but essential elements, namely risk of serious harm and failure of protection. The Tribunal member ultimately determined that she could find no clear and convincing evidence to support the Applicant's claim that the authorities would do nothing to help or that the unwillingness of certain police officers to discharge their duties could be considered to be a practice which is carried out systematically or with the overt or covert concurrence of the State. The Tribunal member found that the Applicant had failed to provide clear and convincing evidence of a failure of State protection and that therefore the Applicant had failed to meet the persecution definition.


2 2.1 The judicial review challenge before this court relates to both of the above findings. Whilst a number of other matters, including a claim in relation to audi alteram partem were raised in the written grounds these were not pursued at hearing.


3 2.2 It was contended on behalf of the Applicant, in...

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